Chapter 1 - § 1.2 • FEDERAL REGULATION

• Jurisdiction: Colorado

§ 1.2 • FEDERAL REGULATION

Federal environmental regulations significantly affect the transfer and use of real property, dictating where development may occur and punishing those who own certain contaminated land. For example, wetlands regulations prohibit almost all construction activities on land that is moist enough to support certain plants,² and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, or Superfund)³ penalizes landowners who acquire polluted property without conducting appropriate due diligence.⁴ Although this book focuses primarily on regulations adopted by the State of Colorado, such regulations are often patterned after or preempted by federal laws.

§ 1.2.1—The Supremacy Of Federal Regulation

Federal environmental regulations have had a pervasive influence, for the most part limited only by the scope of the Commerce Clause.⁵ Federal environmental statutes number more than 2,200 pages,⁶ and Title 40 of the Code of Federal Regulations on "Protection of Environment" measures more than 20 inches. State and local authorities have significant power to regulate real property, but the Supremacy Clause provides that federal laws are supreme.⁷

Given the supremacy of federal laws, state and local governments need to know when such laws preempt their authority. It is up to Congress to decide whether a particular law should preempt state law relating to the same subject matter. Under the preemption doctrine, preemption generally occurs in one of three forms: explicit, field, or conflict.⁸ Sometimes Congress explicitly provides that a particular law preempts state law.⁹ Because federal regulation of areas historically governed by state law is disfavored, Congressional intent to preempt must be "clear and manifest."¹⁰ When Congress has not been explicit, one must try to determine whether Congress has preempted state law implicitly. Preemption may be implicit either because Congress has meant to occupy a field through pervasive federal regulations¹¹ or because a conflict with federal regulations would otherwise result.¹²

Implicit preemption can raise policy concerns when courts strike down local environmental laws under the preemption doctrine without the legislative branch having had an opportunity to consider carefully whether it really meant to preempt local laws. "[P]reemption doctrine as it is currently applied on the national level and in many states may be good law but not good policy."¹³

Closely related to the preemption doctrine is the question of whether environmental regulation is more effective when centralized or decentralized. Are particular environmental controls best adopted and enforced at the federal, state, or local level? Centralization and decentralization each have certain advantages. On the one hand, centralization of environmental regulation prevents a race to the bottom by various states or localities vying to attract businesses by promoting lenient environmental controls. Centralization also prevents one region from foisting pollution off on others who may be downstream or downwind. For example, a community may not have much motivation to adopt strict stormwater controls that hinder development if the impacts of polluted runoff water will primarily affect others downstream. On the other hand, decentralization allows for the flexibility to adopt different regulations for different areas that have different conditions. Regulations that make sense in an urban setting with high population density may not be appropriate for rural areas where hardly anyone will be affected. And regulations developed for areas with high rainfall may not work well in an arid climate.¹⁴

§ 1.2.2—EPA Oversight Authority

Although state agencies often take the lead role in enforcing environmental regulations,¹⁵ the United States Environmental Protection Agency (EPA) generally has the authority to oversee the state's enforcement of regulations based on federal laws and to "overfile" if it does not think the state's efforts are sufficiently rigorous. EPA also has the authority to intervene in state permitting decisions.

Overfiling

"Overfiling" is "EPA's process of duplicating enforcement actions."¹⁶ Even though a state enforcement action may be pending or completed, EPA usually has the power to initiate its own enforcement.¹⁷ It is necessary, however, to look at the particular environmental statute to determine whether Congress meant to preclude EPA enforcement. For example, the Clean Water Act prohibits EPA from overfiling where the state "is diligently prosecuting" a similar action or the state has issued a final order and the violator has paid a penalty.¹⁸

Depending on one's point of view, overfiling can be an essential backstop to protect the environment when state enforcement is lax, or it can be an unwarranted intrusion into state prosecutorial discretion that disrupts the otherwise cooperative relationship between federal and state authorities. What an environmental organization may consider to be necessary state and federal "dual" enforcement, the state may consider to be more like "duel" enforcement.¹⁹ EPA overfiles infrequently,²⁰ but the threat of overfiling tends to discourage state authorities from slackening their efforts or entering into any sweetheart settlements with industry.

EPA generally has broad authority to overfile on the Colorado Department of Public Health and Environment (CDPHE). The Eighth Circuit Court of Appeals undercut EPA's oversight authority in some states by ruling in Harmon Industries v. Browner²¹ that the Resource Conservation and Recovery Act...